Can I stay in the U.S. if my life is in danger in my country even with an aggravated felony?
Alien smuggling is a bar to asylum, but not to withholding of removal.
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I am a citizen of the Democratic Republic of Congo and escaped from my country after being beaten and raped by rebels on account of my husband’s job in the government security forces. After I arrived in the U.S., the same rebel forces threatened my husband’s sister. She fled to Canada, where I helped her enter the United States. I was later convicted of alien smuggling and sentenced to three months in prison. I am certain I will be killed if I return to my country. Can I get asylum or any other protective status in the United States? I am terrified of going back to the Congo.
Because the crime of which you were convicted (alien smuggling) is considered an aggravated felony under U.S. immigration law (see 8 U.S.C. Section 1101(a)(43)(N)), you are barred from winning asylum in the United States.
There is another form of protection, however, that you might be able to obtain, called “withholding of removal.” It is possible to be granted withholding of removal by an Immigration Judge if you can prove that it is “more likely than not” that you will be persecuted if you return to your country.
Like with asylum, your fear of persecution must be on account of your race, religion, nationality, membership in a particular social group, or political opinion. (See I.N.A. Section 241(b)(3).)
Conviction of an aggravated felony does not necessarily bar you from a grant of withholding of removal. You are barred from receiving withholding of removal if you have been:
- sentenced to a total of at least five years imprisonment for any aggravated felony convictions, or
- convicted of being involved in unlawful trafficking in controlled substances.
Since you spent only three months in prison after your conviction, it is possible for you to be granted withholding of removal as long as the Immigration Judge does not consider your conviction to be a “particularly serious crime.” To make that decision, the judge will review:
- the nature of the conviction
- the circumstances and underlying facts of the conviction
- the type of sentence imposed, and
- whether you are a danger to the community.
Since you were convicted of smuggling your husband’s sister into the U.S. to help her after she was threatened by the same rebels who persecuted you, and since you spent only three months in prison, it is entirely possible that the judge will find that the conviction is not a particularly serious crime.
Being granted withholding of removal is very different than being granted asylum, however. Once granted withholding, you will be able to apply for work authorization, and you will not be removed to Congo.
However, you will not be allowed to travel outside of the U.S. and you will not be able to apply for a green card or U.S. citizenship. You will also not be able to file papers for any relatives. It is important to realize that withholding of removal is a way for the U.S. government to protect you from returning to a specific country, and that it is possible for the government to decide to remove you to any other country.
Consider speaking with an experienced immigration attorney if you believe you are eligible to apply for withholding of removal.